Pregnant Women Gain More Protections

Governor Pat Quinn has signed new legislation which significantly increases the rights of pregnant women in the workplace.  The new legislation includes pregnancy as a protected status under the Illinois Human Rights Act.  This new legislation also further expands rights already provided by the federal Pregnancy Discrimination Act.

The new Illinois law makes it a civil rights violation to fail to provide pregnant women with reasonable accommodations upon request.  Employers will now bear the burden of demonstrating an “undue hardship” on the ordinary operation of the business of the employer if they choose to deny a pregnant employee’s request for reasonable accommodation.  The Act does allow the employer to request documentation from the employee’s medical provider to determine the need for the requested accommodation to the same extent that such documentation may be requested in the case of other disabilities provided that the request is job related and consistent with business necessity.  The employer’s inquiry must be limited to a) the medical justification for the accommodation; b) a description of the accommodation; c) the date upon which the accommodation became medically advisable; d) the probable duration of the accommodation.  Employers may not deny employment because of pregnancy or the need to provide a reasonable accommodation and they may not force an employee to accept a reasonable accommodation if they did not request one.

The Act also provides a list of possible accommodations.  The list is rather expansive and includes, but is not limited to the following:  more frequent or longer bathroom breaks; breaks for increased water intake; breaks for periodic rest; private non-bathroom space for expressing breast milk and breast feeding; seating; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; the provision of an accessible worksite; acquisition or modification of equipment; job restructuring; a part-time or modified work schedule; appropriate adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.

The problem with many of these accommodations is that they are vague.  For example, employers are now going to be required to provide “more frequent and longer bathroom breaks.”  What exactly “more frequent” means in this context is anyone’s guess.  Even better is how to determine what “longer” should mean.  Surely, the employer’s definitions of the terms “more frequent” and “longer” will be “less frequent” and “shorter” than the employee’s definition.  And what about breaks for “periodic” rest?  Isn’t a break, by definition, something that occurs periodically.  Finally, and maybe best of all, is the new need to provide “non-bathroom” space for expressing breast milk.  Since the logical definition of “non-bathroom” is any area which is not, well, a bathroom, apparently breast milk can now be expressed everywhere but the bathroom.  So thanks again to the Illinois legislature for providing job security for attorneys.

To avoid unreasonable hardship on employers, they will be required to prove that providing the requested accommodations is prohibitively expensive or disruptive to the business.  The factors considered in making a determination of “unreasonable hardship” are as follows:  a) the nature and cost of the accommodation; b) the overall financial resources of the facility or facilities involved in providing the accommodation, including the number of persons employed and the overall effect on expenses and resources at the facility; c) the overall financial resources of the employer, the overall size of the business with respect to the number of employees and the number, type and location of its facilities; and d) the type of operation or operations of the employer.

Employers should also take note of the notice requirements of the Act.  Employers must post notice of employees’ rights under this Act in a conspicuous location.  The Illinois Department of Human Rights will make the necessary posting documents available on its website.  The new law takes effect on January 1, 2015.

Surely, this new legislation is bound to spawn disagreements between employees and employers regarding reasonable accommodations for pregnant employees.  Since the legislation is new, employers should consult with their attorneys as soon as these issues arise in an effort to avoid the defense of potentially costly Illinois Department of Human Rights Complaints.